Wednesday November 30, 2022

Scofflaws at work

May 02, 2020

The writer is a lawyer based in Islamabad.

A polity that runs out of the ability to generate new ideas has no option but to rehash old and failed ones. We’ve seen the odd piece about the presidential system. And now there is a debate about undoing the 18th Amendment and how it has reduced Pakistan to being a confederation.

Given Pakistan’s bitter history of being broken up in 1971, the 18th Amendment was certainly the best thing that could have happened to keep our federation sustainable. But it is a hard sell to those who wish to dress up an authoritarian unitary state as a federation.

Our constitution envisaged a federation back in 1973. But we continued to delay its emergence on one pretext or another. The reason was simple. Those who enjoyed power at the center were loath to devolve it to provinces (just as those who enjoy power in provinces are loath to devolve it to local governments). Are there better alternatives to devolution of power? After experimenting with power for centuries, there is general consensus amongst thinkers that the best possibility of limiting abuse of power is by distributing it widely.

Our constitution envisages cooperative federalism. But, notwithstanding the 18th Amendment, we retain an overgrown center and insist on fattening it further. We have read down provisions of the constitution that require devolution of power across the three tiers of government: federal, provincial and local. It is not just articles of the 1973 constitution that have been rendered useless, but also new ones introduced by the 18th Amendment. A centralist model is so entrenched in our way of being that we lack the will or the imagination to look beyond it.

A federal structure is about distribution of responsibilities and also power and resources between the tiers of government. But we’ve worked with the idea that, while control is to be retained by the center, responsibilities can be delegated to the provinces. Such a design can’t work. There has been no debate in Pakistan on the size of the federal government. We insist on retaining a puffed-up government at the center despite the constitutional obligation to transfer responsibilities and resources to provinces. The obvious complaint then is that the center is broke.

The constitution endorsed the otherwise odious idea of quotas within the federal civil service for a fixed number of years in the interest of affirmative action. First we continued to extend the timeline for ending the quota system. At some point over the last decade the constitutional mandate for quotas ran out. But we are still continuing with a now unconstitutional quota system. Why? Because it is just too hard to conceive a polity without an all-powerful central bureaucracy, even for judges who are required to interpret and enforce the constitution.

We need affirmative action within the federal civil service because we refuse to allow emergence of functional and incentivized provincial services. Consider: the elite amongst civil service cadres are the District Management and Police Groups. Is DMG not a contradiction in terms? Why should the center raise, maintain and control services that run districts or manage law and order? The constitution doesn’t support a central civil service at the expense of provincial services. But we’ve given its text irrational meaning to retain the strings of control in Islamabad.

BISP is doing some great work. It is helping the ultra poor remain afloat. But from a design perspective is it the federal government’s business to be distributing cash to those who ought to be dealt with at the Union Council level? Health is a provincial subject. If the Covid-19 crisis has highlighted one thing about our federation, it is that diverse ideas coming out of provincial headquarters is a good thing. The much-maligned Sindh in terms of public health management is at the forefront of providing leadership and ideas during this crisis. This is a good thing.

But despite the 18th Amendment we have bent over backward to undo its effect. Consider the Supreme Court’s jurisprudence over the last few years. The concurrent list stands abolished but the SC has somehow found concurrent legislative (and executive) authority for the center within the Constitution. In Sindh vs Nadeem Rizvi, a bench headed by CJP Saqib Nisar ordered the transfer of JPMC, NICVD and the National Institute of Child Health from Sindh and the Sheikh Zayed Institute from Punjab to the center, on the basis of reasoning that is painful to read.

Before this there was the Imrana Tiwana case. Justice Mansoor Ali Shah while at the Lahore High Court breathed life into Article 140A while highlighting the obligation of provincial governments to create fiscally and administratively functional local governments. The issue related to usurpation of local government functions by the LDA and the bureaucracy running it. This was undone again by Justice Saqib Nisar at the SC. He ruled that if parliament really wanted to create autonomous local governments, it should have written down details within the constitution.

Through another judgment by CJP Nisar (PMDC vs Muhammad Fahad Malik), the Council of Common Interests was castrated. The 1973 constitution created the CCI as an essential coordination platform for the center and the provinces. Since then the legislature has done nothing to bring it to life, the executive has taken no steps to frame rules and procedures to make it a meaningful forum and you can search all you like but won’t find a coherent judgment enumerating the scope of its authority. Article 154 that created the CCI is nothing but dead letter of law.

And yet amidst Covid-19 we hear detractors of the 18th Amendment fuss about lack of coordination between the center and the provinces. What stops the PTI from making the CCI functional and useful? We have heard talk about non-existent local governments as an obstacle to public health management. What stops the ruling regime (also in charge of three provinces) from leading by example and creating effective local governments? Just as the APS tragedy led to the military courts, Covid-19 is being seen as an opportunity to seek the roll back of the 18th Amendment.

The real reason for the angst against the 18th Amendment is the fear that we are running out of options to fund our security state. If anything, Covid-19 should have forced an introspection of our state priorities and use of its resources. It should have made us reconsider whether national security means citizen security or state security and how to rationalize the size and functions of the federal government. But in the land of the pure, Covid-19 is having the opposite effect. We want to double down and allocate even more resources to the security state.

Our security state is unable to expand its tax base to mobilize more resources. It is unable to fix the trade deficit or nurture business confidence. And it refuses to right size and limit its footprint and so it wants transfer of resources from the provinces to the center. Let's assume the anti-18th Amendment club prevails and is able to coerce or cajole political parties to rewrite the constitutional formula for distribution of resources through the NFC award. How much more time will that buy our security state to continue with its unsustainable mode of being?

Drumming up fear of enemies is one way of centralizing and entrenching control to keep a tribe together. But using fear, hate and polarization while employing a narrative of corruption or inefficiency or lack of patriotism in provincial capitals as fig leaf isn’t the best strategy for holding a diverse polity together. This is the least we should have learnt from 1971.

If the center can’t generate the resources to pursue its agenda and priorities, maybe it should reorder its priorities instead of demanding that the federating units fund its adventures.